On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-085, Indictment No. 05-05-00185.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Chambers.
After pleading guilty to his third offense for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, at sentencing, defendant was allowed to serve a portion of his jail time in the Sheriff's Labor Assistance Program (SLAP). A subsequent Appellate Division decision held that the mandatory jail time imposed by the statute for a DWI offense, N.J.S.A. 39:4-50(a)(3), could not be served in a SLAP program. State v. Luthe, 383 N.J. Super. 512, 514-15 (App. Div. 2006). As a result, defendant's SLAP sentence was vacated, requiring him to serve time in jail. Since defendant had already begun serving his time in SLAP, he contends that this change in his sentence constitutes an ex post facto application of the law, and that it violates principles of double jeopardy, due process, and fundamental fairness. We disagree. Because the original sentence was an illegal sentence, it may be corrected at any time. However, since the service in SLAP was pursuant to a "plea agreement",*fn1 we stay the sentence for forty-five days in order that defendant may move to vacate the plea.
On February 2, 2006, defendant pled guilty in Chester Township Municipal Court to the DWI charge. As part of a plea agreement, the related traffic complaints of reckless driving, failure to keep right, and failure to dim headlights were dismissed. This was defendant's third DWI offense. The Municipal Court judge suspended defendant's driving privileges for ten years, ordered him to serve at least forty-eight hours in the Intoxicated Driver Resource Center, and sentenced him to six months in jail. The judge stated that defendant would be allowed to serve ninety days of his jail time in SLAP and the balance in a rehabilitation program. The judge fined defendant $1,000 and assessed the requisite monetary costs, penalties, and assessments.
A month later, on March 6, 2006, we held that under the terms of the statute, N.J.S.A. 39:4-50(a)(3), third time DWI offenders could not participate in non-custodial programs as an alternative to jail time, but must serve their time in jail, except that they could serve up to ninety days in an inpatient rehabilitation program as expressly permitted by the statute. State v. Luthe, supra, 383 N.J. Super. at 514-15.
On May 12, 2006, in response to the Luthe decision, the Sheriff's Office determined that defendant could not serve his sentence in SLAP. By this time, defendant had already served ten days in SLAP. The matter came before the Municipal Court judge on July 6, 2006, and the judge, expressing some concern over the ex post facto issue, initially reaffirmed his placement of defendant into SLAP. However, upon reconsideration, the judge thereafter revoked the SLAP sentence and required that defendant serve ninety days in jail upon completion of his rehabilitation program. He stayed the sentence, pending appeal.
The Law Division judge, in his de novo review of the record in accordance with Rule 3:23-8(a), State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995), determined that defendant had been given an illegal sentence, which may be corrected at any time. However, in light of the fact that the sentence was part of a plea agreement, the judge determined that defendant may withdraw his plea, and if reconvicted after a trial, would be given credit for the ten days served in SLAP. The judge explained his decision as follows:
Now, defendant makes . . . an argument concerning ex post facto, double jeopardy and due process. Generally, any statute which makes a prior act that was innocent when committed a crime, which makes punishment for a crime more burdensome after its commission, or which deprives a defendant of a defense available when the act was committed, constitutes an ex post facto law. State v. T.P.M., 189 N.J. Super. 360 at 366 (App. Div. 1983).
Additionally, a defendant may not be resentenced where the defendant has accepted a plea offer, been sentenced in accordance therewith, and has begun to serve that sentence. State v. Veney, 327 N.J. Super. 458 at 462 (App. Div. 2000).
On the other hand, a sentence is illegal if it is inconsistent with the requirements of the controlling . . . sentencing statute or constitutional principles. [Ibid. citing] State v. Flores, 228 N.J. Super. 586 at pages 591 and 592, (App. Div. 1988) [certif. denied, 115 N.J. 78 (1989)]. New Jersey courts have consistently held that the illegal sentences may be corrected at any time. [Ibid.;] State v. Heisler, 192 N.J. Super. 586 at 592 (App. Div. 1984), (citing also, State v. Sheppard, 125 N.J. Super. 332 (App. Div. 1973), [certif. denied, 64 N.J. 318 (1973)]).
Here, N.J.S.A. 39:4-50(a)(3) was amended in 2004 to require a custodial sentence . . . in a "county jail or a work house" for  third time DWI offenders, almost two years prior to the date of the defendant's offense in October of 2005. Therefore, defendant's original SLAP sentence was illegal because it was inconsistent with the statutory requirement.
Accordingly, the court finds that the defendant's ex post facto and double jeopardy arguments do not apply, because the original sentence of the defendant constituted an illegal sentence, which may be corrected at any time. And I would point out that the statute against which he was sentenced was already in place as amended. So, it's not a situation where the punishment was enhanced . . . . That was the ...